The Employment Appeal Tribunal (EAT) upheld a ruling that an employer failed to make reasonable adjustments by dismissing a disabled employee instead of offering a trial period for an alternative role.
Rentokil Initial UK Ltd v Mr M Miller
Background
The Claimant, Mr M Miller, was employed in April 2016 by the Respondent, Rentokil Initial UK Ltd, as a field-based Pest Control Technician. In March 2017, the Claimant was diagnosed with Multiple Sclerosis rendering him unable to continue to work within his role. Following the diagnosis, the Claimant was unable to work at heights, which equated to approximately 40% of his role, and the Claimant could only work slowly. Various adjustments to his working arrangements and terms and conditions were made but by 2019, the Respondent decided that alternatives needed to be explored.
In 2019, the Claimant applied for a Service Administrator role with the Respondent but was unsuccessful following a Capability assessment. Subsequently, the Respondent dismissed the Claimant on the grounds that there were no further adjustments that could be made which would enable the Claimant to remain in his field-based role.
The Claimant argued that the Respondent had not complied with its duty to make reasonable adjustments because it had not implemented a trial period for the Claimant with respect to the Service Administrator role. The Tribunal allowed the Claimant’s claim for disability discrimination, unfair dismissal and a failure to make reasonable adjustments. The Tribunal found in favour of the Claimant’s claims.
The Respondent appealed the Tribunal’s decision on the grounds set out below:
- The Tribunal was wrong to find that a trial period amounted to a reasonable adjustment;
- The burden of proof was not justified to shift to the Respondent to prove that the Service Administrator role was not suitable for the Claimant;
- The tribunal was wrong to find that the Respondent should have implemented a trial for the Claimant as a reasonable adjustment, given the Respondent’s genuine and reasonable concerns regarding the Claimant’s qualifications and suitability for the role; and;
- The question of whether a reasonable adjustment should have been made is objective, therefore the Tribunal was wrong to focus on what the decision maker was thinking at the time the decision was made and should have assessed this in an objective manner.
The EAT’s findings
The EAT dismissed the Respondent’s appeal on all four grounds:
Ground one
The EAT found that the Claimant was subjected to a substantial disadvantage because of his disability and the risk of dismissal was almost certain. They confirmed that the Tribunal was right to find that a trial period would have been a reasonable step for the Respondent to take and confirmed that this would have avoided the substantial disadvantage experienced by the Claimant. The EAT made explicitly clear that a trial period can be a reasonable adjustment.
Ground two
The EAT agreed that the Claimant had successfully proved that a provision, criterion or practice applied, that he was disadvantaged because of this and identified a potential reasonable adjustment that the Respondent could have implemented to minimise the disadvantage. The EAT reaffirmed that the Tribunal was correct in shifting the burden of proof onto the Respondent so that they could prove why it was not reasonable to have implemented the trial period and why the role was not suitable.
Additionally, the EAT found that the Tribunal was correct in finding that the Respondent had failed to discharge this duty; meaning that the Respondent failed to meet the standard of the burden of proof.
Ground three
The EAT held that, whilst the Tribunal was justified in considering the Recruiting Manager’s assessment of the Claimant’s interview and written tests undertaken for the Service Administrator role, the Tribunal was not obliged to agree with the Respondent’s assessment of the situation.
Ground four
The EAT found that the Tribunal made an objective decision when deciding what reasonable adjustments should have been made, taking into account the evidence presented to it.
The EAT confirmed that the Tribunal did not find that the Respondent failed to make reasonable adjustments because it did not follow a certain process nor that it failed to consider the Claimant’s application for the Service Administrator role in a particular manner, but rather the Respondent failed to provide enough evidence to prove why they felt it was reasonable to dismiss the Claimant. The Tribunal made an objective decision and took the evidence presented to it into consideration.
How can we help?
Chloe Hickling is a Trainee Solicitor in our expert Employment Law team.
If you have any questions concerning the subjects discussed in this article, please contact Chloe or a member of our expert Employment Law team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
Contact us